Election re-run a possibility if AJP take error to court

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THE NSW Government may be hoping it loses a too-close-to-call upper house seat to the Animal Justice Party to avoid a legal fight and possible fresh election.

The NSW Electoral Commission has admitted to an error that resulted in 19,000 votes being cast while the AJP and the Outdoor Recreation Party were wrongly missing from the "above the line" section of the ballot.

The AJP and the Liberals are neck and neck, just behind the No Land Tax Party - which was correctly included on the ballot.

AJP candidate Mark Pearson said his party would take the matter to the Supreme Court if voting remained on level pegging.

"It's fascinating that the Liberal Party doesn't want to get that seat now," he said.

"It's very likely we would win the appeal and we may have to go back to it all over again. They're concerned they could then lose a couple of seats from the upper house and lose the balance of power.

Mr Pearson's legal advisors told him the court may simply choose to hand the seat over to the AJP "if there were only three or four votes in it", but that a fresh upper house election would be more likely.